UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
Form 8-K
_________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event Reported): September 24, 2020
BEIGENE, LTD.
(Exact Name of Registrant as Specified in Charter)
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| Cayman Islands | 001-37686 | 98-1209416 |
| (State or Other Jurisdiction of Incorporation) | (Commission File Number) | (I.R.S. Employer Identification Number) |
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c/o Mourant Governance Services (Cayman) Limited
94 Solaris Avenue, Camana Bay
Grand Cayman KY1-1108
Cayman Islands
(Address of Principal Executive Offices) (Zip Code)
+1 (345) 949-4123
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
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| Title of each class | | Trading Symbol(s) | | Name of each exchange on which registered |
| American Depositary Shares, each representing 13 Ordinary Shares, par value $0.0001 per share | | BGNE | | The NASDAQ Global Select Market |
| Ordinary Shares, par value $0.0001 per share* | | 06160 | | The Stock Exchange of Hong Kong Limited |
*Included in connection with the registration of the American Depositary Shares with the Securities and Exchange Commission. The ordinary shares are not registered or listed for trading in the United States but are listed for trading on The Stock Exchange of Hong Kong Limited.
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 1.01. Entry into a Material Definitive Agreement.
As previously disclosed, on January 2, 2020, BeiGene, Ltd. (the “Company”) issued 206,635,013 ordinary shares in the form of 15,895,001 American Depositary Shares (“ADSs”), representing approximately 20.5% of the Company’s then outstanding share capital, to Amgen Inc. (“Amgen”) for aggregate gross proceeds of approximately $2.78 billion, or $13.45 per ordinary share, or $174.85 per ADS, pursuant to a Share Purchase Agreement dated October 31, 2019, as amended, by and between the Company and Amgen (the “Share Purchase Agreement”). On March 17, 2020, the Company and Amgen entered into an Amendment No. 2 (the “Second Amendment”) to the Share Purchase Agreement in order to account for periodic dilution from the issuance of shares by the Company.
On September 24, 2020, the Company and Amgen restated in its entirety the Second Amendment (the “Restated Second Amendment”), pursuant to which Amgen will have an option (the “Direct Purchase Option”) to subscribe for additional ordinary shares of the Company in the form of ADSs (the “Additional Shares”) in an amount necessary to enable it to increase (and subsequently maintain) its ownership at approximately 20.6% of the Company’s outstanding share capital. The Direct Purchase Option is exercisable on a monthly basis, but only if Amgen’s interest in the outstanding share capital of the Company at the monthly reference date is less than 20.4%. The Restated Second Amendment has revised the Second Amendment such that the Direct Purchase Option (i) will be exercisable by Amgen solely as a result of dilution arising from issuance of new shares by the Company under its equity incentive plans from time to time, and (ii) is subject to annual approval by the Company’s independent shareholders each year during the term of the Restated Second Amendment.
In connection with the Restated Second Amendment, the Company has applied for, and The Stock Exchange of Hong Kong Limited (“HKEx”) has granted, a waiver (the “Waiver”) from Rules 13.36(1)(a) and 14A.36 of the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the “HKEx Listing Rules”) in respect of the Direct Purchase Option, subject to specified conditions.
As previously disclosed, the Company was in a HKEx review process to seek HKEx’s approval of the Direct Purchase Option and postponed an extraordinary general meeting of shareholders (the “EGM”) for the Company’s shareholders to consider, and if thought fit, approve the grant of the Direct Purchase Option under a specific mandate. In light of the grant of the Waiver by the HKEx, the Company has discontinued the HKEx review process and expects to hold the EGM in due course. The Restated Second Amendment and the issuance of Additional Shares thereunder are subject to approval by a majority vote of the Company’s shareholders, excluding Amgen, pursuant to the HKEx Listing Rules.
The exercise period of the Direct Purchase Option will commence on the first day of the month following shareholder approval and will terminate on the earliest of: (a) the date on which Amgen and its affiliates collectively own less than 20% of the outstanding share capital of the Company as a result of Amgen’s sale of shares; (b) at least 60-day advance written notice from either Amgen or the Company that such party wishes to terminate the Direct Purchase Option; or (c) the third anniversary of the date on which the exercise period of the Direct Purchase Option commences. The Direct Purchase Option has no vesting period.
The Additional Shares will be issued in a private placement in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), for transactions by an issuer not involving a public offering, and/or Regulation D under the Securities Act. All certificates evidencing the shares will bear a standard restrictive legend under the Securities Act.
The foregoing description of the terms of the Restated Second Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The disclosure set forth under Item 1.01 is incorporated by reference into this Item 3.02.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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| Exhibit No. | | Description |
10.1
| | Restated Amendment No. 2 to Share Purchase Agreement, dated September 24, 2020, by and between Amgen Inc. and the Company. |
| 104 | | The cover page from this Current Report on Form 8-K, formatted in Inline XBRL |
Exhibit Index
| | | | | | | | |
| Exhibit No. | | Description |
| 10.1 | | |
| 104 | | The cover page from this Current Report on Form 8-K, formatted in Inline XBRL |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| | BEIGENE, LTD. | |
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| Date: September 24, 2020 | By: | /s/ Scott A. Samuels |
| | Name: | Scott A. Samuels |
| | Title: | Senior Vice President, General Counsel |
